Wimberly, Christopher Eugene, WR-64,017-05

Background

Dec. 23, 2002 Pizza Hut robbery in Killeen: two trial eyewitnesses (Phillip Wynn and manager Gerard Gioioso) identified Christopher Wimberly from a photo lineup and in court; no physical evidence was recovered. Wimberly was convicted of aggravated robbery and sentenced to 50 years.
Wimberly filed multiple post-conviction applications over years. In 2014 he submitted an affidavit from inmate Royry Glenn Tones who confessed to the Pizza Hut robbery and said he acted alone.
The Court ordered a live evidentiary habeas hearing where Tones testified (waiving Fifth Amendment), claiming he committed a series of robberies and the December 23 robbery between dusk hours, wearing different clothing than trial witnesses described, and using a pistol‑grip/sawed‑off shotgun.
At the habeas hearing Wimberly testified he only obtained Tones’s affidavit in 2014 and learned of Tones by inmate intermediaries around 2008–09; both men had overlapping time in Bell County Jail in 2003–04.
The habeas court found Tones’s affidavit and testimony inconsistent with his prior statements and with trial eyewitness testimony (differences in time of robbery, clothing, weapon type, and height). The trial court deemed Tones not credible.
The Court of Criminal Appeals deferred to those credibility findings and denied relief, holding Wimberly failed to prove actual innocence by clear and convincing evidence that no reasonable juror would convict in light of the new confession.

Issues

Issue	Plaintiff's Argument (Wimberly)	Defendant's Argument (State)	Held
1. Does Tones’s post‑conviction confession establish actual innocence?	Tones’s affidavit and testimony admit sole responsibility and would exonerate Wimberly.	Confession is inconsistent, late, and conflicts with trial eyewitnesses; not credible.	Denied — confession not credible or persuasive; Wimberly failed clear‑and‑convincing standard.
2. Must the court treat the petition as a subsequent writ (procedural bar)?	Wimberly contends the affidavit was new and obtained in 2014.	State argues Wimberly knew of confession earlier and filed previously.	Court avoided procedural bar question and resolved merits; discretionary but noted uncertainty about prior awareness.
3. Are Tones’s statements consistent with trial eyewitness descriptions (time, clothing, weapon, height)?	Tones’s account matches some general facts (robbery, shotgun) and he offers details.	Witnesses described a hooded heavy coat, full‑length pump shotgun, and a taller robber matching Wimberly; Tones described ski mask, bomber jacket, pistol‑grip sawed‑off shotgun, and shorter height.	Held inconsistent; trial testimony more reliable; conflicts undermine Tones’s credibility.
4. Standard and burden for Herrera‑type actual innocence claim	Wimberly must show by clear and convincing evidence that no reasonable juror would convict in light of new evidence.	State argues evidence does not meet the ‘Herculean’ clear‑and‑convincing threshold.	Held for State — Wimberly failed to meet the high burden.

Key Cases Cited

Herrera v. Collins, 506 U.S. 390 (U.S. 1993) (establishes framework for actual‑innocence/Herrera claims)
Ex parte Mayhugh, 512 S.W.3d 285 (Tex. Crim. App. 2016) (actual‑innocence standard: clear and convincing evidence that no reasonable juror would convict)
Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006) (procedural considerations for successive writs and innocence claims)
Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) (standards for habeas review of new evidence)
Ex parte Navarijo, 433 S.W.3d 558 (Tex. Crim. App. 2014) (deference to habeas court fact findings and credibility assessments)
Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008) (trial judge as original factfinder in habeas proceedings)
Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014) (credibility deference to habeas court)
Aguilar v. State, 468 S.W.2d 75 (Tex. Crim. App. 1971) (single eyewitness testimony can support conviction)
Bowden v. State, 628 S.W.2d 782 (Tex. Crim. App. 1982) (conflicts in evidence resolved by factfinder)
Ex parte Harleston, 431 S.W.3d 67 (Tex. Crim. App. 2014) (convicted defendant presumed not innocent after fair trial)